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then: while 13 Del. C. § 2504(f) used to require the court to appoint either an at- torney or a court-appointed special advo- cate (CASA) for termination cases, it was amended in 2017 to require the appoint- ment of an attorney to serve as guardian ad litem in all cases (although the best practice is for the attorney to serve in a client-directed role rather than a guardian ad litem “best interests” role).50
These factors all provide significant support for a categorical right to counsel, not a case-by-case approach as provided by the current rule.
Moreover, the Delaware Supreme Court’s rulings on the constitutional right to counsel in such cases are based on underpinnings that have lost their support over the years. At the time the Court made its ruling on the constitu- tional right to counsel in termination- of-parental-rights cases, it stated it could see “no sound reason for interpreting the due process language of the Delaware Constitution differently than the Due Process Clause of the Federal Constitu- tion has been interpreted by the U.S. Su- preme Court in Lassiter.”51 In reaching that conclusion, the Court relied in part on the fact that at that time (1984), many of the state courts around the country that had identified a right to counsel in termination cases had relied on the fed- eral constitution, that such cases “are no longer persuasive,” and that “the right to counsel required by those cases has gener- ally been re-established by statute in the states involved.”52 However, since then, as previously discussed, more than a dozen state courts have re-established a right to counsel under their state constitutions, so that rationale no longer holds. Moreover, in its subsequent ruling on dependency matters, the Court showed a considerably greater awareness of the difficulties faced by all parents in Delaware child welfare proceedings, as described above.
The Court should thus find that the Delaware Constitution’s due process pro- vision guarantees counsel for all parents. Independent constitutional interpretation is not a novel concept in Delaware: the Delaware Supreme Court has frequently
expanded rights beyond the floor set by the U.S. Supreme Court.53 And as the Court has stated:
“Although Delaware is bound togeth- er with the 49 other States in an indi- visible federal union, it remains a sov- ereign State, governed by its own laws and shaped by its own unique heritage. An examination of those laws and that heritage may, from time to time, lead to the conclusion that Delaware’s citizens enjoy more rights, more con- stitutional protections, than the Fed- eral Constitution extends to them. If we were to hold that our Constitution is simply a mirror image of the Fed- eral Constitution, we would be relin- quishing an important incident of this State’s sovereignty. In a very real sense, Delaware would become less of a State than its sister States who recognize the independent significance of their Con- stitution ... Subject to the limits of the Supremacy Clause, no one would ar- gue that our General Assembly should not legislate on subjects such as envi- ronmental protection merely because Congress has done so. Similarly, this State’s judicial branch should not be foreclosed from interpreting our Con- stitution merely because the United States Supreme Court has interpreted similar provisions of the Federal Con- stitution.”54
Given the Court’s understanding of the difficulties faced by all parents in these child welfare proceedings, as well as the law from other jurisdictions, there would be ample basis for parting ways with Las- siter and recognizing a categorical right to counsel for parents in these cases. Delaware’s Civil Contempt Right-to-Counsel Law
The Delaware Supreme Court’s hold- ing on the right to counsel in civil con- tempt proceedings is somewhat confusing on the surface, but at the end of the day it translates to a categorical right to counsel for any defendant facing incarceration.
In Black v. Div. of Child Support En- forcement, the Court held that “an indi- gent obligor who faces the possibility of incarceration in a State initiated civil con- tempt proceeding does have a due process right to court appointed counsel.”55 It then seemed to contradict itself by holding,
“The right of a defendant to have counsel appointed should be deter- mined on an individual case basis in accordance with the presumption an- nounced in Lassiter. ... [W]e adopt the Lassiter presumption but conclude that there is no basis for enlarging this prescription under Delaware consti- tutional standards into a fixed rule of entitlement to counsel.”56
However, the Court was explaining only that it did not intend to provide a right to counsel where physical liberty is not threatened, since it stated that a trial judge must first determine whether a de- fendant faces a possibility of incarcera- tion, and if the defendant does, then “the presumption attaches and due process requires counsel be appointed for the in- digent obligor.”57 The court then added that even if physical liberty is not threat- ened, the trial court should still apply the factors from Mathews v. Eldridge, and that
“If after weighing these factors a court determines that, as a matter of due process and fundamental fairness, the defendant should be represented, then counsel should be appointed even if a loss of physical liberty is not threatened
See THE GUIDING HAND OF COUNSEL continued on page 30
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